Judge considers survivor benefits for lesbian mother's child

BY admin

October 16 2003 12:00 AM ET

The case of a 5-year-old New Jersey boy who is being denied survivor benefits because his deceased mother could not marry her lesbian partner underscores the need for basic protections for lesbian and gay families, the American Civil Liberties Union said in a friend-of-the-court brief urging the Social Security Administration to provide the benefits. "While President Bush and the religious right are celebrating so-called Marriage Protection Week, a 5-year-old boy is being denied the financial support that his mother worked hard to provide because our laws don't respect same-sex relationships," said Ken Choe, a staff attorney with the ACLU's Lesbian and Gay Rights Project. "As this case so clearly shows, lesbian and gay families, just like straight families, need legal protections to get through difficult times."

Early in their seven-year relationship, Eva Kadrey and Camille Caracappa decided to have a child, according to the ACLU. Caracappa was the principal breadwinner, so they decided that Kadrey would carry their child. In March 1998, Kadrey gave birth to Nicolaj Sikes Caracappa. Caracappa continued to work full-time as a freelance oncology nurse while Kadrey stayed home and cared for Nicolaj. Shortly after Nicolaj was born, Caracappa made plans to adopt him and even contacted a lawyer to start the process, but she died suddenly of an undiagnosed brain aneurysm at 38, before the paperwork for Nicolaj's adoption was completed. At the urging of Caracappa's mother, Kadrey filed for Social Security survivorship benefits for Nicolaj in November 2000. Less than a month later, the Social Security Administration denied Nicolaj's claim because the two women had never been married and because Caracappa wasn't Nicolaj's biological mother.

The case is now up for review by an administrative law judge in Voorhees, N.J. If the couple had been allowed to marry, Nicolaj would be entitled to Caracappa's benefits. The Social Security Administration even allows the children of stepparents to receive survivor benefits, the ACLU noted. "It wasn't until Camille's death that I realized how differently married couples are treated by our government," Kadrey said. "We are lucky because Camille's parents have always accepted me as family and they helped Nicolaj and me get back on our feet. But it's not easy being a single parent. Camille paid into the Social Security system just like everyone else, and now she's being treated like a stranger to her son. It's just not right that Nicolaj should loose the benefits she paid for because our government ignores same-sex families."

In the brief to the administrative law judge, the ACLU pointed out that under New Jersey law, Nicolaj is Caracappa's heir, even though his two mothers were not married. The New Jersey supreme court has recognized that people with no biological or formal adoptive tie to a child but who have functioned as a parent should be treated as a parent for all purposes, which would entitle Nicolaj to inherit from Caracappa. "This case illustrates just one of the many ways in which same-sex couples are hurt by our government's refusal to respect their relationships," Choe added. "People are still being barred from partners' hospital rooms, shut out of emergency medical decisions about their partners' health care, and left with nothing when their partners die."